NCAA rejects UNC’s arguments about bogus classes

For two years, UNC-Chapel Hill and NCAA officials talked about the investigation into nearly two decades of fake classes as a joint probe, with both working together to find out if rules were broken.

That cooperative spirit wasn’t in evidence Tuesday, when newly released correspondence showed the NCAA no longer views the university as a partner in the investigation. It instead cited the university’s “willful violations” and “blatant disregard” for NCAA regulations.

On Friday, both sides are expected to be battling again before the NCAA’s Committee on Infractions in an unusual preliminary hearing. UNC is seeking to have a major infractions case thrown out through due-process issues. One of its arguments: The NCAA knew about the fake classes in mid-2011 while investigating other misconduct involving the football team but did not take action.

The NCAA rejected all of UNC’s arguments – and asserted that the university didn’t tell the NCAA everything it should have about the classes in 2011. The commission that accredits UNC made a similar charge in putting UNC on probation for a year in 2015.

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“It is now clear that the institution did not provide the (NCAA) enforcement staff with the entire body of pertinent information at that time, and the NCAA relied to its detriment on the thoroughness of the institution’s production,” the NCAA’s enforcement staff wrote.

A recent News & Observer series, “Carolina’s Blind Side,” showed how UNC officials either downplayed the classes’ link to athletics or refused to believe something like that could happen in Chapel Hill.

UNC received the NCAA’s response a month ago. The News & Observer had been seeking its release for three weeks. During that time, UNC’s attorney had filed more legal arguments and sought to interview NCAA officials who were handling the case.

UNC’s attorney, Rick Evrard, wrote in the correspondence that the NCAA has only itself to blame for not becoming aware of the depths of the misconduct until former federal prosecutor Kenneth Wainstein’s investigation in 2014. Wainstein found that several staff within the Academic Support Program for Student-Athletes were culpable.

“The fact that the Enforcement Staff made resource allocation decisions not to spend extensive time looking at huge numbers of emails and documents relating to every ASPSA employee does not mean the information was ‘not available’ or that the University withheld or failed to uncover or locate any information,” Evrard wrote.

Blame for Baddour

The NCAA saw Wainstein’s investigation as a turning point, after seven prior probes or reviews did not conclude that athletic eligibility helped drive the scandal in the African and Afro-American Studies department.

“The new information provided, for the first time, a complete picture of the athletics department’s preferential access to anomalous AFRI/AFAM courses and, in some cases, how it used those courses to retain NCAA academic eligibility for student-athletes,” the NCAA’s enforcement staff wrote. “This access provided student-athletes with advantages that other students simply did not have.”

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Investigator Kenneth Wainstein describes a lack of oversight by UNC while outlining his investigation into academic issues and athletics. Wainstein was presenting his findings during a 2014 press conference held by UNC. UNC video

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The enforcement staff’s response laid the blame for the failure to shut down the classes on academic and athletic officials. Former longtime athletic director Dick Baddour drew a mention for doing little, the NCAA said, when the former head of the athletes’ tutoring program, Robert Mercer, and a former senior associate athletic director, John Blanchard, raised questions about the classes a decade ago.

“Because of Dick Baddour’s, former athletics director’s, hands-off management approach, Mercer and Blanchard also did not receive support from the athletics department on this issue,” the response said. “Institutional leaders chose not to act.”

Baddour, who retired in 2011, could not be immediately reached.

Case grinds on

The records represent the typical back-and-forth between universities and NCAA officials in infractions cases, though this has been one of the more protracted investigations in the NCAA’s history.

The infraction committee’s hearing Friday is closed to the public, and it’s unlikely any information about what took place will become public before a decision on any punishment is reached later.

The hearing will determine whether the NCAA has the legal grounds under its regulations to pursue a case against UNC regarding the fake classes. The committee is also expected to decide whether it can consider key information from the most extensive investigation into the scandal – Wainstein’s 131-page report, which was released in October 2014.

That report found 18 years of fake classes – most of them created by Deborah Crowder, a longtime office manager in the Department of African and Afro-American Studies. More than 3,100 students took at least one of the classes, with athletes making up roughly half of that group despite representing less than 4 percent of the student body.

Football and men’s basketball players were the two top beneficiaries of the classes by sport. The classes had no instruction and only required a paper to be submitted to obtain a high grade. They began as independent studies, but Crowder in 1999 began disguising them as lecture classes to get around a limit on how many independent studies a student could take.

Her boss, department chairman Julius Nyang’oro, continued the classes for two more years after Crowder retired in 2009, at the request of an academic counselor for the football team. They weren’t exposed until The News & Observer obtained a transcript for a former star football player in August 2011.

The case could end if the committee finds the NCAA lacks procedural grounds; if not, the case would proceed to an infractions hearing sometime late this year or in early 2017.

Here are UNC’s arguments against the NCAA taking up the academic fraud scandal, and how the NCAA’s enforcement staff responded:

▪ Does the NCAA have jurisdiction?

UNC: The NCAA has no jurisdiction over academic matters such as the content and oversight of courses.

NCAA: The case isn’t about content or management of courses. It’s about “how the unmonitored athletics department used anomalous courses in a manner different than the general student body in violation of NCAA rules.”

▪ Were the bogus classes broadly available?

UNC: The classes had non-athletes enrolled, along with athletes.

NCAA: Athletes made up nearly half of the enrollments, when they account for 3 percent of the student body. “The preferential and near unfettered access the AFRI/AFAM department gave athletics to the anomalous courses provided student-athletes with advantages that others simply did not have.”

▪ What NCAA standards did UNC violate?

UNC: The NCAA accusations of UNC’s failure to monitor and lack of institutional control failed to cite any underlying bylaw for misconduct – such as unethical conduct or impermissible benefits – involving the classes.

NCAA: The failure of academic and athletic officials to put a stop to the fake classes and to the access athletes had to them justifies those violations.

▪ Does the NCAA get a second chance at the scandal?

UNC: The NCAA’s enforcement staff had the opportunity to fully investigate the classes in August 2011, when UNC first notified it during the course of an investigation into improper financial benefits from agents and improper academic help from a tutor.

NCAA: The previous case involving the football team was unrelated to the fake classes, and the full scope of the academic scandal wasn’t known until three years later with the Wainstein investigation. The NCAA also noted that seven investigations prior to Wainstein’s report failed to get to the bottom of the scandal.

▪ Is it too late?

UNC: By the time the NCAA either re-opened or began a new investigation into the classes, the four-year statute of limitations had expired.

NCAA: The four-year limit can be waived when there is a “blatant disregard” of NCAA bylaws.

▪ Is Wainstein’s investigation off-limits?

UNC: The NCAA can’t consider evidence obtained by Wainstein from the two architects of the fake classes because he did not interview them in accordance with NCAA protocols.

NCAA: The Committee on Infractions gives more weight to emails and statistical information than witness statements or observations made by Wainstein and his team. “Committee on Infractions members can assign whatever weight they choose, but they should at least have access to the publicly available report.” The NCAA also said UNC didn’t dispute the Wainstein report and made serious reforms after its release.